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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21451/93

Harold Gerrard

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 21 May 1997)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-20) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-15) 1

C. The present Report

(paras. 16-20) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 21-37) 3

A. Particular circumstances of the case

(paras. 21-30) 3

B. Relevant domestic law and practice

(paras. 31-37) 4

III. OPINION OF THE COMMISSION

(paras. 38-52) 6

A. Complaints declared admissible

(para. 38) 6

B. Point at issue

(para. 39) 6

C. As regards Article 8 of the Convention

(paras. 40-51) 6

CONCLUSION

(para. 52) 8

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a British citizen born in 1936 and currently serving a

sentence of imprisonment in HMP Blundeston. He is represented by Ms. Nicola

Rogers, a solicitor at the AIRE Centre in London.

3. The application is directed against the United Kingdom. The respondent

Government are represented by Mr. Ian Christie from the Foreign and Commonwealth

Office.

4. The case concerns the complaints of the applicant of the opening of his

letters with his solicitor and the Commission. He invokes Article 8 of the

Convention.

B. The proceedings

5. The application was introduced on 15 April 1992 and registered on 1 March

1993.6. On 30 June 1993, the Commission decided to communicate the application to

the Government inviting them to submit observations on the admissibility and

merits.

7. On 5 November 1993, the Government submitted their observations and on 22

November 1993, the applicant submitted his observations in reply.

8. On 11 March 1994, the AIRE Centre wrote to the Commission enclosing a

letter of authority from the applicant and requesting an extension in the time-

limit for submitting further observations in reply to the Government. After two

further extensions of time, the applicant's representatives submitted

observations on 9 September 1994. Further information was submitted on behalf of

the applicant on 11 November 1994.

9. On 11 January 1995, the Commission requested the Government to submit

further written observations on the admissibility and merits of the applicant's

complaints.

10. The Government's further observations were submitted on 10 March 1995 and

the applicant's further reply was sent on 25 April 1995.

11. On 18 October 1995, the Commission declared the application admissible.

12. The parties were then invited to submit any additional observations on the

merits of the application.

13. On 2 September and 6 December 1996, the applicant made further

submissions.

14. After declaring the case admissible, the Commission, acting in accordance

with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of

the parties with a view to securing a friendly settlement of the case.

15. In the light of the parties' reactions, the Commission now finds that

there is no basis on which a friendly settlement can be effected.

C. The present Report

16. The present Report has been drawn up by the Commission in pursuance of

Article 31 of the Convention and after deliberations and votes, the following

members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

17. The text of the Report was adopted by the Commission on 21 May 1997 and is

now transmitted to the Committee of Ministers in accordance with Article 31

para. 2 of the Convention.

18. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose a breach

by the State concerned of its obligations under the Convention.

19. The Commission's decisions on the admissibility of the application is

annexed.

20. The full text of the parties' submissions, together with the documents

lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

21. The applicant was convicted of murder and sentenced to life imprisonment

in 1986.

22. Since the applicant arrived at HM Prison Blundeston in or about 1987, he

states that his correspondence from his solicitor has been persistently opened

without him being present. He lists six particular letters - 21 February 1992,

29 February 1992, 10 March 1992, 6 May 1992, 9 May 1992 and 1 December 1992. He

states that a letter dated 11 February 1993 was opened in his presence but that

the prison officer proceeded to read it.

23. By response dated 25 February 1992 to the applicant's complaint about

opening of letters, the Governor acknowledged that a solicitor's letter, which

was marked in accordance with prison procedure (see Relevant domestic law and

practice below), had been opened in the applicant's absence contrary to the

rules but that the officer concerned had personally acknowledged his oversight.

24. The applicant complained further about the opening of the first three

letters above in a complaint form dated 10 March 1992. He stated that it had

been alleged that all three had been opened in error but that he considered that

opening was happening too often for it to be an accident. He was informed in

reply by the Area Manager that the appropriate handling procedures were in

operation.

25. The applicant also complained about the letter of 6 May 1992. In a reply

dated 15 May 1992 the Area Manager stated that since it did not appear that the

applicant was party to or defendant in civil or criminal proceedings his

correspondence from his solicitor was subject to the normal opening procedures.

His appeal against this received the response dated 1 June 1992 that the

implications of the Campbell judgment were still under consideration by the

Government but that further steps had been taken to prevent errors in the

handling of mail to which Standing Order 5B 32(3) applied. The applicant's

complaint concerning the opening of the letter dated 1 December 1992 met the

reply that the relevant standing order was applied.

26. The applicant states that letters dated 12 May 1992 and 14 January 1993

from the Commission were given to him pre-opened. The applicant complained about

the latter to the Prison Governor and was informed by reply dated 20 January

1993 that correspondence from the Commission could still be opened in a

prisoner's absence under the applicable standing order.

27. The applicant wished to challenge the prison authorities' interference

with his correspondence as being in breach of the prison rules and the European

Convention of Human Rights. Legal aid for the application to the courts was

refused by the Legal Aid Area Office on 8 December 1992 on the ground that he

had not shown that he had reasonable grounds for taking the proceedings and that

it was considered that he had no reasonable prospects of success in the

proceedings. The applicant's appeal to the Area Committee was rejected on 19

February 1993 on the same grounds.

28. On 1 January 1994, the Prison Rules with regard to the opening of

correspondence with solicitors and the Commission were amended (see para. 36

below).

29. Since that date, the applicant states that four letters to him from his

solicitors dated 11 February, 2 March, 5 March and 30 March 1994 have been

opened by the prison authorities despite the letters being clearly marked.

30. In respect of the four letters mentioned above, the Government state that

the envelope of the first of the above letters was opened by the prison officer

in error when it was face down and when it was turned and the Rule 37 marking

noted, the contents were not taken out and an apology made orally to the

applicant. The envelope for the letter of 30 March 1994 was also opened in error

but the contents not removed and an apology made to the applicant. No formal

complaint was received by the prison authorities in respect of any of these

incidents.

B. Relevant domestic law and practice

Position prior to 1 January 1994

31. Section 47(1) of the Prison Act 1952 reads as follows:

"The Secretary of State may make rules for the regulation and management

of prisons ... and for the classification, treatment, employment, discipline and

control of persons required to be detained therein."

32. Rules 33(2) and (3) of the Prison (Amendment) Rules 1989 read as follows:

(2) "Except as provided by statute or these Rules,a prisoner shall not be

permitted to communicate with any outside person, or that person with him,

without the leave of the Secretary of State.

(3) Except as provided by these Rules, every letter or communication to or

from a prisoner may be read or examined by the governor or an officer deputed by

him, and the governor may, at his discretion, stop any letter or communication

on the ground that its contents are objectionable or that it is of inordinate

length."

33. Correspondence to a prisoner from his solicitor and from the Commission

could therefore be opened by the prison authorities.

34. An exception was made in respect of correspondence with a solicitor

regarding pending legal proceedings:

Rule 37A provided:

"A prisoner who is a party to any legal proceedings may correspond with

his legal adviser in connection with the proceedings and unless the governor has

reason to suppose that any such correspondence contains matter not relating to

the proceedings it shall not be read or stopped under Rule 33(3) of these

Rules."

35. This rule was supplemented by Standing Order 5B which provided that

incoming correspondence from legal advisers which was marked "SO5B 32(3)" was

not to be read or stopped and was only to be opened for examination in the

presence of the inmate unless the governor has reason to suppose that the letter

was not in fact within the privilege conferred by Prison Rule 37A.

Position from 1 January 1994

36. An amendment was made to the Prison Rules which came into force on 1

January 1994: Prison (Amendment) (No. 2) Rules 1993.

"For rule 37A there shall be substituted the following-

Correspondence with legal advisers and courts

37A.-(1) A prisoner may correspond with his legal adviser and any court

and such correspondence may only be opened, read or stopped by the governor in

accordance with the provisions of this rule.

(2) Correspondence to which this rule applies may be opened if the

governor has reasonable grounds to suspect that it contains an illicit

enclosure...

(3) Correspondence to which this rule applies may be opened, read and

stopped if the governor has reasonable cause to believe its contents endanger

prison security or the safety of others or are otherwise of a criminal nature.

(4) A prisoner shall be given the opportunity to be present when any

correspondence to which this rule applies is opened and shall be informed if it

or any enclosure is to be read or stopped...

(6) In this rule, "court" includes the European Commission of Human

Rights, the European Court of Human Rights and the European Court of Justice..."

37. In an Instruction of Prison Governors (IGII3/1995) issued on 21 December

1995, HM Prison Service explained that pursuant to the revised rules

correspondence by a prisoner with their legal advisers must not be opened, read

or stopped except in the specific circumstances set out in the rule and even

then it can only be opened for examination in the presence of the prisoner.

Correspondence with courts, including the Commission, were to be afforded the

same confidentiality. It stated that there must be "strict compliance" with the

rule since any breach, even accidental, would be likely to lead to challenge in

both domestic and international courts. Governors were to ensure that the

Instruction was brought to the attention of the officers concerned and to take

such steps as were necessary to ensure that procedures were introduced to

maintain confidentiality, including adequate safeguards against inadvertent

opening.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

38. The Commission has declared admissible the applicant's complaints

concerning interference with his correspondence with his solicitor and the

Commission.

B. Point at issue

39. The issue to be determined in the present case is:

- whether there has been a violation of the applicant's right to respect for

his correspondence contrary to Article 8 (Art. 8) of the Convention.

C. As regards Article 8 (Art. 8) of the Convention

40. Article 8 (Art. 8) of the Convention provides as relevant:

"1. Everyone has the right to respect for his ... correspondence...

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law and is

necessary in a democratic society in the interests of national security, public

safety or the economic well-being of the country, for the prevention of disorder

or crime, for the protection of health or morals, or for the protection of the

rights and freedoms of others."

41. The applicant submits that his correspondence has and continues to be

subject to a persistent practice of opening and an apology cannot be considered

in these circumstances as resolving the matter. It is emphasised that as a

mandatory life prisoner the applicant is in a vulnerable position and that the

civil rights which he still retains have assumed an enlarged significance for

him. The applicant has accordingly suffered significant distress from the

opening of his privileged correspondence. It is submitted that the continuing

incidents1 suggest that the Government do not take seriously their obligation to

protect a prisoner's privileged correspondence. He has submitted letters from

the Prison Reform Trust and the Prisoner's Advice Service referring to the many

complaints of opening of privileged correspondence and the problem that in

practice prison staff appear ignorant of, or simply ignore the rules.

42. The respondent Government acknowledge that one letter from the applicant's

solicitor was opened in breach of prison rules and accepts that other letters

from the applicant's solicitor or the Commission may also have been opened

pursuant to the rules in force. They point out that the rules have now changed

and it is now established that letters from solicitors and the Commission should

only be opened in the presence of a prisoner in specified circumstances. They

submit that an apology having been made in respect of one incident, the matter

should be regarded as resolved. Insofar as it is alleged that letters have been

opened since the change in the applicable rules, the Government state that this

happened by mistake in respect of two letters, the contents of which were not

read and for which an apology was made and that the applicant did not make

formal complaint in regard to any of the four alleged instances of opening.

43. The Commission recalls that opening and reading of correspondence by a

prisoner with his legal adviser and with the Commission was found to disclose a

violation of Article 8 (Art. 8) of the Convention in the Campbell case (Eur.

Court HR, Campbell v. the United Kingdom judgment of 25 March 1992, Series A no.

233).

44. The Commission has examined the complaints of the applicant with reference

to the period before 1 January 1994 and after that date when the applicable

rules changed to take the Court's judgment into account.

Prior to 1 January 1994

45. Prior to 1 January 1994, the Commission notes that the Government

acknowledge that one letter from the applicant's solicitor was opened outwith

his presence and that pursuant to the rules in force at that time other letters

from the applicant's solicitor or the Commission may have been opened, as the

applicant alleges. No grounds of justification have been put forward, save that

in the acknowledged incident of opening a solicitor's letter this was stated by

the prison authorities to have been a mistake.

46. In these circumstances, the Commission finds that there has been a

violation of the applicant's right to respect for his correspondence within the

meaning of Article 8 (Art. 8) in relation to his correspondence with his

solicitor and the Commission.

Subsequent to 1 January 1994

47. Following 1 January 1994, the applicable prison rules changed, in light of

the Campbell case, to provide that correspondence by a prisoner with a legal

adviser and courts (including the Commission) should not be opened save in

specified circumstances where the Governor has reasonable cause to believe its

contents endanger prison security or the safety of others or are otherwise of a

criminal nature, and that where such correspondence is to be opened this should

take place in the presence of the prisoner.

48. Notwithstanding this change in the rules, the applicant complains that his

correspondence with his solicitor continues to be opened, referring to four

incidents. The Government have acknowledged that on two of these occasions the

letters were opened in error and apology made. They point out that the applicant

made no formal complaint about these matters.

49. The Commission notes that on at least two occasions letters with the

applicant's solicitor were opened, contrary to the rules in force and without

any justification on any ground under Article 8 para. 2 (Art. 8-2). It observes

that the incidents occurred in the period after the introduction of new rules

and that their implementation may have inevitably disclosed oversights or

misunderstandings at the beginning.

50. Nonetheless, the Commission recalls the importance of the link with the

outside world which correspondence offers to a prisoner, particularly in the

case of a longterm prisoner as the applicant and the strong elements of

confidentiality which attach to correspondence with legal advisers (see eg.

Campbell judgment op. cit. paras. 45 and 50). It accordingly behoves the

authorities, as acknowledged by the Government in the circular issued to prison

governors, to ensure strict compliance with rules and that proper procedures and

safeguards be put in place to avoid even inadvertent opening of protected

correspondence.

51. Since the applicant's complaints disclose more than an isolated incident

but an apparent failing in the procedures in the prison concerned, for which no

justification under Article 8 para. 2 (Art. 8-2) has been given, the Commission

finds that there has been a violation of his right to respect for his

correspondence through the opening of his correspondence with his solicitor.

CONCLUSION

52. The Commission concludes, unanimously, that there has been a violation of

Article 8 (Art. 8) of the Convention in respect of the opening of his

correspondence with the Commission and his solicitor prior to 1 January 1994 and

in respect of the opening of his correspondence with his solicitor after this

date.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber

of the First Chamber

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GERRARD v. THE UNITED KINGDOM

GERRARD v. THE UNITED KINGDOM

LEXI